Standing Committee E

[Mr. Joe Benton in the Chair]

Domestic Violence, Crime and Victims Bill [Lords]

Cheryl Gillan: On a point of order, Mr. Benton. There have been reports this morning of investigations being conducted in relation to murder and manslaughter, which will obviously have an impact on the subjects that we are discussing. Can the Under-Secretary of State for the Home Department, the hon. Member for Wythenshawe and Sale, East (Paul Goggins), make available any details that his Department has on those reviews and say whether there has been any analysis of the impact that they could have on, for example, the domestic violence homicide reviews that we discussed at an earlier sitting?

Paul Goggins: Further to that point of order, Mr. Benton, I do not have anything to add immediately to enlighten the hon. Lady, but I promise to look into her point. If there is any appropriate information, I shall bring it to the Committee.Clause 10 restraining orders: England and Wales

Clause 10 - restraining orders: England and Wales

Dominic Grieve: I beg to move amendment No. 10, in page 6, line 4, at end insert—
 '(1A) In subsection (1) of that section after ''an order under this section'' insert—
''(a) if the prosecutor asks it do so, or
(b) if the court thinks it is appropriate to do so.''
 '(1B) After subsection (2) of that section insert—
 ''(2A) For the purpose of deciding whether to make an order under this section the court may consider evidence led by the prosecution and the defence.
 (2B) It is immaterial whether evidence led in pursuance of subsection (2A) would have been admissable in the proceedings in which the offender was convicted.''
 (1C) After subsection (3) of that section insert—
 ''(3A) An order under this section takes effect on the day on which it is made, but the court may provide in any such order that such requirements of the order as it may specify shall, during any period when the offender is detained in legal custody, be suspended until his release from that custody.''.'

Joe Benton: With this it will be convenient to discuss the following amendments: No. 34, in page 6, line 6, after 'heard', insert
'on the making of an order under this Act and'.
No. 11, in page 6, line 16, at end insert— 
 '(2) For the purpose of deciding whether to make an order under this section the court may consider evidence led by the prosecution and the defence. 
 (3) It is immaterial whether evidence led in pursuance of subsection (2) would have been admissable in the proceedings in which the defendant was acquitted.'. 
No. 12, in page 6, line 34, at end insert— 
 '( ) In section 3(2)(fa) of the Prosecution of Offences Act 1985 (c.23) (functions of the Director of Public Prosecutions) after ''orders under'' insert ''Sections 5 and 5A of the Protection from Harassment Act 1997 (Restraining Orders),''.'.

Dominic Grieve: Clause 10 deals with the Government's intention to provide restraining orders that should be capable of being made on acquittal as well as on conviction, as they are at present. In addition, the Government intend to widen the conditions under which restraining orders may be made after conviction to cover conviction for any offence and not just a category of offence, as at present.
 Amendment No. 10 is probing and is designed to find out from the Government whether the Bill's drafting will achieve the exact aims that the Government intend. As matters stand, my understanding is—the Minister will correct me if I am wrong—that a restraining order made after conviction is made of a court's own motion when the judge decides that it is appropriate to do so. So far as I am aware, no further evidence that could go towards the making of that order is adduced in court following a conviction. I had a look at the Protection from Harassment Act 1997, and nothing in it suggests that such a provision would be possible. If I am wrong about that, I would be grateful to be corrected. 
 In providing alterations to restraining orders on conviction, the Government have first, under clause 10(1), widened the scope of the offences to all offences for which a restraining order can be made. They have then added subsection (2), which states: 
 ''Any person mentioned in the order is entitled to be heard on the hearing of an application under subsection (4).'' 
That raises two questions. First, do the Government wish the present format to continue, whereby only the court of its own motion can make the order? With restraining orders on acquittal, the possibility exists for the prosecution to make an application. Should it not therefore be for the prosecution, as well as the court, to make an application after conviction? 
 Secondly, what provision exists if an application is being made after conviction for further evidence to be adduced if necessary, in the same way as would happen after acquittal? Should not we ensure that the provisions after conviction and after acquittal are identical? Have the Government got the wording right to achieve that objective? If they do not intend to achieve that objective, and their view is that the procedure after conviction and after acquittal can be wholly dissimilar, I would be grateful to know why. For example, where someone is convicted of an offence of violence and more material could be placed before the court about the violence that he had done to a member of his household that had not been adduced in the main trial, because, for some reason, it had to be excluded, would it not be desirable for the prosecution 
 to be able to say, ''We have some more evidence that we want to present as a reason for making a restraining order under the Protection from Harassment Act 1997''? Under the Government's proposals, that could happen after an acquittal, but I do not think that it could happen after a conviction. That is the nub of amendment No. 10. 
 Amendment No. 12 is mainly consequential. Amendment No. 11 is designed to make it clear that evidence can be led by the prosecution and the defence after acquittal in relation to the making of an order. New section 5A may provide for that to happen anyway, but I am not certain that, as it is drafted, it ensures that that is the case. I seek an assurance that the Government have noted those points; if the clause requires some amendment, it could be usefully amended along the lines that I have proposed.

David Heath: I have a good deal of sympathy for the comments made by the hon. Member for Beaconsfield (Mr. Grieve). I shall primarily discuss amendment No. 34, which comes from a similar point. As I understand it, the procedure is that a victim may make representations and has a right to be heard on the variation or removal of an order. That being the case, it seems extraordinarily perverse that there is no right to be heard at the making of the order in the first instance.
 The Minister in another place argued that such a provision was unnecessary for two reasons. First, because of the nature of the evidence that is given, the person is likely to be present in the court. Although there may be occasions when they are not, I accept that they often will be, or that they will be represented even if they are not physically present. The second argument is that the court, because it will have heard all the evidence in the main case, should not have to take other matters into account at the point of making the order. 
 As the hon. Member for Beaconsfield usefully pointed out, other evidence or circumstances that were not admissible or that were irrelevant to the main case may be admissible or relevant to the making of a restraining order. For that reason, my amendment simply provides for the victim to be heard at the point at which the order is made. It makes the procedure analogous to that which is spelled out in the Bill for the variation or revocation of an order, where it is clear that it is important that everyone who is a party to the order has the opportunity to be heard. I hope that the Minister will be sympathetic to the intention of the amendment and also to its content. It is a simple, small amendment that is in the spirit of the Government's proposals. It would make the situation explicit for the courts, and it would improve on the current position.

Vera Baird: There is concern among women's groups that there is no opportunity for the victim, at the end of a trial, to have some input into the kind of order that will be made. She may be there, as the hon. Member for Beaconsfield conceded, but she may well not. In some cases, the victim of a crime may
 just want to give evidence, leave and hear the outcome of the case later. There is no compulsion to remain to the bitter end, and she may not feel the impulse to do so.
 There may be no opportunity to instruct the Crown Prosecution Service as to exactly what kind of order would help. More importantly, the victim should be there while the terms of the order are debated before the judge, because the orders are likely intimately to affect her life and relationships. We are talking about domestic violence on the part of a person who may well remain the father of the defendant's children. It seems slightly cavalier for a blanket order to be made without the defendant having any input at all, and there does not seem to be any reason why she should not have the opportunity to have input. Of course, that is part of the sentencing process and normally does not involve representations from elsewhere. However, there is a pretty direct analogy with victim impact statements: that is not the latest term for them; I have forgotten what it is—

Harriet Harman: Personal.

Vera Baird: Yes, victim personal statements; I am grateful to the Solicitor-General. The statements set out the impact that the criminality had on the victim, and that is dealt with on sentencing, so that the judge has a full appreciation of the depth of the criminality's impact. That is exactly the sort of thing that one would want put forward at that stage. Those statements are a good parallel to use in justifying taking that step.
 It is probably a good idea to ensure that the victim in a domestic violence case has a right to be heard. Similarly, it seems hard if the defendant does not have a right to be heard, although, of course, he will continue to be represented, so there are no real problems there. When we come to consider the position on acquittal, it may be more difficult to ensure that the defendant has a right to be heard, and that no order is made if he is not there, because as soon as he is acquitted, there is no power to keep him in court. It is therefore easy for him to avoid an injunction by leaving at that time. However, that is a matter to discuss later. It seems to be a bit of a miss that the victim will not have a say in the kind of order that will govern not only the defendant's life, but hers, and I invite the Minister to think about introducing change.

Christopher Leslie: Good morning, Mr. Benton. As usual, it is a pleasure to serve under your chairmanship.
 As was mentioned at an earlier sitting, the fact that we present amendments first and then debate clause stand part means that we do not talk about the good parts of the proposals. Essentially, the clause is about allowing the courts to make a restraining order in respect of any offence and extends the availability of such orders to offences beyond the two currently allowed in the Protection from Harassment Act 1997, which are harassment and fear of violence. 
 Amendments Nos. 10 to 12 are quite similar to those debated in the other place, and the Attorney-General was anxious that we should look at them in more detail, because some important issues were raised. We have done that, and despite our hope that we could look at them in a favourable light, we are unable to support the conclusions reached in them. 
 Under the 1997 Act, the decision to impose a restraining order on a person convicted of harassment or of putting someone in fear of violence is taken by the court in parallel with the sentencing process. The prosecution often reminds the court that it can make an order, but it does not actually apply for one. That procedure works very well, and figures show that the court makes restraining orders in more than half of cases in which a person is convicted under those two offences in the 1997 Act. Under the clause, the same procedure will apply to courts sentencing someone convicted of any offence.

Dominic Grieve: I appreciate the Minister's point, but of course the two offences under which the restraining order can currently be made lead one almost inexorably to think about making a restraining order. Widening the scope of the offences to all offences on which a restraining order could be made would make it likely that there would be many occasions on which the court might well not think of a restraining order, which was one of the reasons for bringing the prosecution into the process.

Christopher Leslie: It may well be that the courts would not think it appropriate to impose a restraining order in certain cases. In our view, it would, however, be wrong to restrict the court's ability to making restraining orders simply for harassment and causing fear of violence. There are many other parallel criminal offences—criminal damage, stalking or other offences—that people can imagine putting a victim under the persistent threat of fear or danger, for which the court might want to make restraining orders. We wanted simply to remove the two offences from being the only circumstances in which restraining orders could be put in place.

Lady Hermon: Will the Minister reflect on what he has said? We do not have antisocial behaviour orders in Northern Ireland at present, although we are consulting on them. What impact does he anticipate the restraining orders will have on antisocial behaviour orders?

Christopher Leslie: They are two separate court orders and relate to specific purposes. It would not be right to see them as similar or identical. Restraining orders are to protect a victim or class of victims. Antisocial behaviour orders have a different, wider ability: to protect the public interest, or a particular neighbourhood and so forth. The orders are of a different nature. I am sorry that the provisions are not familiar, for whatever reason. It is not within my portfolio, but I will certainly look at the history and origins of antisocial behaviour orders in Northern Ireland and at why, as the hon. Lady says, they are not occurring.
 Clause 10 is drafted so that a court can sentence someone convicted of any offence and impose a restraining order; it could also do so when dealing with somebody on acquittal of any offence. In the latter case, the prosecution and defence would be able to inform the court's decision by adducing additional evidence, admissible under the civil evidence rules. That relates to the point made by the hon. Member for Beaconsfield. 
 At present, we do not have the ability to put a restraining order in place on acquittal. In such circumstances, it would be right for there to be the opportunity for further evidence to be adduced, but it should be under the civil arrangements, since the prosecution would not have been able to establish guilt to secure a conviction. I think that the hon. Gentleman is right about the Protection from Harassment Act 1997.

David Heath: It is nice to have a third Minister participating in our proceedings, but I dispute the logic of what he has said. By definition, a restraining order does not deal specifically with the offending behaviour that has been the subject of the trial; different behaviour is required to be restrained, not necessarily the behaviour for which the person was found guilty. It seems extraordinary that such a restraining order can be made only on the evidence been brought forward on a specific charge, which may not be the matter on which the restraining order is made.
 There is no capacity under those circumstances for bringing forward other evidence on a civil court basis in support of a restraining order. That does not sound logical, and I hope that the Minister will consider it carefully.

Christopher Leslie: Perhaps I did not explain correctly. On acquittal, the court would be able to hear the further evidence offered; obviously, there was insufficient evidence to secure the conviction. If the court decided to make an order after conviction, it would base that on the evidence that was adduced in respect of the conviction; that would be the motivation.
 So far, the courts have worked well. They have produced restraining orders on many occasions. We do not have evidence that they are working improperly. We simply felt the need to widen the availability the restraining orders so that the courts can make them both on conviction for any offence and on acquittal.

Dominic Grieve: I share the view of the hon. Member for Somerton and Frome (Mr. Heath) that there is an illogicality here. There was a strong argument for not allowing restraint orders to be made on acquittal at all—a principled argument based on the need to go to the civil court. However, I confess that the proposal was sold to me. I accepted that justice should be speeded up by enabling a court to grant a restraining order where it has been seized of the matter and where it is clear that an injunction—that is what a restraining order is—should be granted. I accepted that that was a way of simplifying and streamlining our justice system,
 but if that process is going to be used on acquittal by allowing extra evidence to be adduced, I cannot for the life of me see why it should not be allowable to adduce extra evidence on conviction—if, for instance, although there is a conviction for an offence, one or two of the component elements that would persuade a judge that a restraining order must be made are still missing.
 I do not understand the Minister's logic. Once he has taken the major step of allowing restraint orders on acquittal, it is only a minor step to deal with the matter after conviction and allow further evidence to be adduced.

Christopher Leslie: I take the point. We felt that it was not necessary to do that given that a conviction will have been established on the basis of the evidence presented before the court, and that evidence will have led the court in many circumstances—as has been the case in the past, even in respect of two particular offences—to decide to impose a restraining order. We did not feel that it was necessary to do more than that.
 I hear what the hon. Gentleman says, and I will look further at his argument, but I am advised that the provision is not necessary and that no representations have been made on needing extra evidence to be adduced following conviction, given that so much will have been done to establish the guilt of the individuals concerned that that will naturally lead the court to impose a restraining order. We feel that we have struck the right balance. 
 Amendment No. 10 would mirror procedures in respect of antisocial behaviour orders following conviction. In those cases, section 86 of the Anti-social Behaviour Act 2003, which amended the Crime and Disorder Act 1998, enables the CPS to ask the court to make an order and allows the prosecution and defence to lead additional evidence. We did not feel that it was necessary to do that in the present case, not least because we made changes and established the procedures in respect of antisocial behaviour orders precisely because experience had shown that there was a need to clarify the role of the CPS in proceedings to ensure greater consistency across England and Wales. We also needed to change the arrangements to prevent problems that had arisen where some courts had indicated a reluctance, or had even refused, to hear applications for orders on conviction made by local authorities on the grounds that they did not have a standing before the court. Such matters are particular to antisocial behaviour orders. They are different from the procedures relating to restraining orders. The latter are working well and we do not feel that there is any particular need to change them. 
 We do not believe that making restraining orders available on conviction for an offence will pose insurmountable problems. Courts are already familiar with the concept of harassment and are unlikely to experience significant difficulties appreciating which cases might call for an order. I have already said that in such cases the CPS will be able to remind the court of its powers. 
 Amendment No. 12 is consequential; it is necessary to make amendment No. 10 work, and it stands or falls with that amendment. Amendment No. 11 would bring the subsections governing the admissibility of evidence in proceedings for restraining orders on acquittal into line with the equivalent subsections dealing with antisocial behaviour orders. Amendment No. 11 is not necessary, although I understand the probing intention behind it. Whereas under the 1998 Act restraining orders are made following a conviction, clause 10 would allow them to be made after an acquittal. Because the prosecution will have failed at that stage, the Government have linked the production of evidence in such proceedings to the rules governing the admissibility of evidence under hearings for a civil injunction under section 3 of the Protection from Harassment Act 1997. There are a number of other drafting issues relating to amendment No. 11, but I shall not discuss them at this stage because they are too technical. We needed the civil injunction arrangement because we are extending the measure to include acquittal and make the restraining orders available at that time. 
 The Government's intention in drafting subsection (2) was to deal with one of the issues raised in response to the consultation paper: the need for victims to be kept informed when an application is made to vary or terminate a restraining order that is protecting them. I have heard my hon. and learned Friend the Member for Redcar (Vera Baird) and Opposition Members argue that they want to extend the right to be heard. Subsection (2) will give any person who is mentioned in a restraining order a right to be heard—to make representations—if an application is made to vary or terminate the order. Rules of court will place a duty on the court to inform anyone mentioned in the restraining order of an application to vary or terminate an order, so they will be able to exercise their right to be heard. 
 Amendment No. 34 would extend the right to be heard where the restraining orders are made in the first place, thereby changing established procedure where courts make restraining orders on conviction. In such cases, as my hon. and learned Friend suggested, the court makes its decision as part of the sentencing process and on the basis of the evidence that it has already heard. Not only is the defendant present and legally represented in most cases, the person to be protected by the order will, almost invariably, be in court for the proceedings. 
 CPS lawyers often regard it as their duty, as officers of the court, to make known the victim's views on a restraining order, and the responses to our consultation document revealed no particular dissatisfaction with those arrangements. In addition, it is possible that giving defendants, as well as victims, a right to be heard on the making of an order could lead to adjournments and delay the protection provided by restraining orders. It is important that we try to ensure that the court is able to put in place relatively swiftly the protection for the victim or the defendant in those 
 cases. If court proceedings need to stop and start to enable various parties to be heard, there is a risk that the protection will be delayed. 
 I understand that in designing the structures we must ensure that we do not block the ability for people to make their views known as early as possible. However, my advice is that saying that the current arrangements, in which the CPS is able to make its points to the court on behalf of the victims, work. There is a need to avoid a series of adjournments and protracted proceedings in the court, because the orders protecting the victim need to be made as swiftly as possible.

Geoffrey Clifton-Brown: Perhaps I have misread section 5 of the Protection from Harassment Act 1997 and clause 10. When someone has breached a harassment order and the matter goes back to the court, the court has the power to convict the person on indictment or impose a fine. Will the Minister clarify whether the court, as opposed to anyone else, can vary the original terms of the harassment order?

Christopher Leslie: I think that that is the case. One of the reasons why we want to extend the right to be heard to the victim—the party to the case—is so that on variation or termination, or application for such, of the restraining order the victim has the capability to be heard. Unfortunately, restraining orders have sometimes been varied without the victim being informed that such proceedings were taking place. That is why we have put the measure in the Bill, as a result of which we have provoked the debate about whether there should be a general right to be heard at all stages of the restraining order being put in place. We do not consider that it is necessary to have that extra right at the outset of the proceedings. I accept the strength of the argument being advanced, but I am advised that such steps are not necessary because there is greater likelihood of such a right being the norm at the outset of the case.

David Heath: The Minister has said two things that disturb me. First, he suggested that all we are talking about is a right to be heard in a vague way. In fact, we are arguing that there is a need to adduce more evidence to secure a restraining order in the same way as an injunction is secured in a civil court. Secondly, he said that a delay in the making of the restraining order would leave a victim unprotected. That is not the case. When criminal proceedings are in train, any restraining orders can be made under bail conditions and will remain in place until the conclusion of the case. It is nonsense to suggest that there is no capacity to apply a restraining order until the conclusion of the criminal case.

Christopher Leslie: The hon. Gentleman is arguing against himself. He said that he wanted people to come forward to give evidence under acquittal, which is an arrangement for adducing further evidence before the restraining order comes into place. If there were an adjournment, clearly the restraining order would not have been put in place. It makes sense for the court to
 have the capability to decide on a restraining order and thus provide protection to the victim as soon as possible.

Dominic Grieve: I am not sure that the Minister is following the point. Let us consider a restraining order being put in place on acquittal. There will almost certainly be a delay in achieving that. If more evidence is to be adduced following the acquittal, it is probable that the case will be adjourned to another day. It will be difficult to put the order in place then and there. Now, let us consider putting in place a restraining order after conviction. As the hon. Member for Somerton and Frome said, if the judge does not sentence then and there, he can impose bail conditions or remand the person in custody, which would prevent the convicted defendant from taking the actions that would subsequently be prevented by the restraint order. I do not follow the Minister's argument.

Christopher Leslie: I hope that the hon. Gentleman does follow my argument, although he may not agree with it. We need the restraining order must be capable of being agreed by the court early on in the proceedings. It will be necessary to make parallel procedural changes to the rules of the court to make sure that there will be hearing of evidence on acquittal. Our intention is to take such action in as swiftly as possible. Although this is a developing policy, I believe that it is necessary to make sure that the court has the ability to put a restraining order in place as a preventive mechanism, not as a punitive measure, in order to protect the victim from the fear of violence or harassment soon after acquittal or conviction. I am receiving advice that we do not need to extend matters further. We will be watching developments very carefully, but neither the advice that I have been given nor the responses to the consultation paper suggest that the arrangements suggested in the amendments are necessary.

Lady Hermon: Can the Minister assure the Committee that, from the advice that he and his colleagues have received about the compatibility of this provision with our obligations under article 6 of the European convention on human rights, he is absolutely assured that the orders are compatible with the right to a fair trial?

Christopher Leslie: I am assured of that. The Home Secretary would not have made the statement on the front of the Bill were that not the case. With human rights considerations, it is important that we bring into the balance the need to protect the rights of the victims to be free from harassment and fear of violence. It is important that we have a prevention power through restraining orders even under acquittal to provide those individuals their human right to be free from fear of violence or harassment.

Dominic Grieve: The hon. Member for North Down (Lady Hermon) touches on a question that the Minister himself has not raised: is there a problem in allowing further evidence to be adduced after
 conviction in order to secure a restraint order based on article 6, as the restraint order would be seen as part of the total package of the sentence, and therefore would not follow the rules of a fair trial? Is that the problem that has led the Government not to go down this road, even though they are prepared to allow further evidence to be adduced after acquittal?

Christopher Leslie: We do not see the restraining order as a punitive sentence—it is a preventative measure that is currently available on application. In the family civil court environment, the order may be agreed by a court. We see the restraining order being achieved under the rules of admissibility of evidence under civil procedure, and, similarly, it is a preventative measure. On that basis, there is no particular difficulty.

Vera Baird: I understand entirely what my hon. Friend is saying. He, along with everyone else, is right that post conviction there is not a problem. The vulnerability of somebody who has been a victim arises post acquittal, when there is no ability to impose bail terms and it is important to be able to act quickly. If, post conviction, the judge felt that he needed more evidence, does my hon. Friend perceive that he would have the power to call for it?

Christopher Leslie: My hon. and learned Friend is learned for a very good reason: she knows far more than I about the whys and wherefores of the court. In the procedures that we have in place, we do not envisage a post-conviction scenario having the same admissibility of evidence as the post-acquittal scenario. However, I may need to take further legal advice on that, and supply a note to the Committee to say whether I am right. If I am wrong, I shall certainly write to my hon. and learned Friend. She raises a reasonable point that has arisen from debate, and I shall certainly discuss it with officials. The current advice is that the arrangements in the amendments are not necessary, and I hope that through my great argument I have been able to persuade the Committee of that fact.

Geoffrey Clifton-Brown: The hon. and learned Member for Redcar has raised a vital point. When the Minister writes to her, will he be sure to write to the whole Committee?

Christopher Leslie: The round-robin letter arrangements are well established, and to write to one Member means writing to all. I hope that the amendment will not be pressed.

Dominic Grieve: I am grateful to the Minister for a full series of answers. In part, he answered some of my concerns. I remain puzzled however at the willingness to allow for further evidence to be adduced after acquittal, which is necessary for the civil proceedings of establishing the restraint order, while refusing to allow that to happen after conviction. That is an illogicality that I simply cannot get away from. I raised the question of the Human Rights Act 1998 and wondered whether that had caused the anxiety, but the Minister tells me that it has not. I cannot see the
 problem or why the Bill should not be amended along the lines that I suggested, not necessarily using the text of amendment No. 10 but in a way that makes it clear that further evidence can be adduced after conviction if that is thought to be necessary to establish the foundations for the restraint order.
 That might be an abstruse argument and in reality that problem might never arise, but I shall look at my law reports from time to time and I will be interested to see whether, over the next five to 10 years, there is a problem where after conviction a judge says, ''Well, you may have been convicted but there is no material on which I can make a restraining order. I am not allowed to listen to further evidence.'' If that is the case, much to my dismay, we will have the Domestic Violence, Crime and Victims (Amendment) Bill 2007—or whenever it will be.

Vera Baird: Although I perceive that my hon. Friend the Minister thought that I was bowling him a googly, I was not trying to do so. A judge, post conviction, still has the right to adjourn sentence and to put bail terms that say, ''Do not go near your victim at all. I do not feel that I have got enough evidence from this single conviction to make a decision about a restraining order. I am now in a civil jurisdiction and I want to get more evidence from Mrs. A and Mr. B—people I have seen already—or from the neighbour who was spoken of but who was not present at court because her evidence was not admissible under criminal test.'' I cannot see that there could be anything to stop that happening. Therefore, it might be that there is no need for the provision that we are discussing to be in the rules. Judges tend to have a good deal of jurisdiction over how they run their courts.

Dominic Grieve: I note carefully the hon. and learned Lady's comments, and she might be right. I have a slight doubt whether that is the case, because the restraint order is a creature of statute in the criminal jurisdiction of the court. While a judge can always call following conviction for evidence to be given on voir dire in order to hear background matters relating to sentencing, I have a doubt that he can allow further evidence to be adduced on oath in an adversarial fashion subsequent to conviction, when he is supposed to have dealt with all that in the course of the trial.

David Heath: Without having the legal expertise to back up my views, I share the hon. Gentleman's concerns. It would still be open, would it not, for somebody who has failed to secure the restraining order in the criminal court because of the restrictions that the Government are rather perversely applying at the point of making the order, to seek an injunction in a civil court on precisely the same grounds? It is not the case that someone would be entirely prevented from taking appropriate action—it just becomes more inconvenient, which is the point of the Government's proposals.

Dominic Grieve: I agree entirely. It clearly does not do that; it would still be possible to bring civil proceedings. We have tried to produce a streamlined procedure. Perhaps I am straying into issues for the
 clause stand part debate, but it is not necessarily ideal that a number of Crown court judges have looked askance at me when they have heard about this matter and they have said that they are not happy about having to take on a jurisdiction with which they are not particularly familiar. Doubtless, like everybody else, they can be trained in order to do it. I have noted that one or two anxieties have been expressed in that department. That being said, and as I have alerted the Minister to what might be a minor flaw in the way in which clause 10 is drafted, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

David Heath: I beg to move amendment No. 82, in
clause 10, page 6, line 7, at end insert—
 '(4B) Where the defendant and any person mentioned in the order are involved in Family Proceedings (as defined in section 63 of the Family Law Act 1996) either party may apply to that Family Court to vary, but not to discharge, the order and the court, if it is satisfied that it is appropriate for it to do so, may vary the order in so far as it affects the parties involved in the Family Proceedings or any child of either of them'.
 I am indebted to Mr. Neil Addison for pointing out the difficulty that he perceives with the Bill as it stands, and I want to seek the Government's view on it. The concern is that, almost inevitably, as a result of this legislation, a great deal more restraining orders will be made, particularly in the context of a breach of non-molestation orders. Often, in domestic violence cases, that will relate to couples with children, so that the family division would normally be intimately connected with what is considered. 
 The purpose of the Government's proposal is to avoid a person—a victim—having to seek redress from criminal and civil courts, moving between the two and experiencing the inherent difficulties and the potential confusion in that process. Family courts are often better equipped to consider these issues in the round in the longer term. We will deal with that in discussing a later group of amendments. However, that is not the point of this amendment, which would give a concurrent jurisdiction between the criminal and family court on varying an order that has been made. I suggest that because there may be some sort of operational difficulty between the terms of a restraining order and access to children, or other matters that fall within the province of the family court. At present we do not have a unified court. We are told that that is a long-term intention of the Government, but it is not going to happen in the near future. 
 Where the family court would wish there to be a variation in the terms of the restraining order, it could not make such an order under the proposals that we are considering today. It would have to send the defendant, the victim and any other witnesses involved back to the criminal court to amend the order. That is an unnecessarily time-consuming and difficult procedure if our purpose is to introduce a more streamlined approach. 
 I understand that we are talking about separate jurisdictions and that although there is an overlap, there are different purposes for those. The amendment 
 proposes giving a family court the power to make a variation on an order where it is appropriate to do so in the interests of the family unit or children involved. It should be able to do so without the ping-pong process, which is unnecessary. The amendment itself would not create a unified jurisdiction—it could not. It would provide more ease of operation for those who are affected by the orders and give latitude, which is missing in the current proposals. 
 I hope that the Minister will give serious consideration to my proposal, which would improve, rather than undermine, the Government's proposals.

Christopher Leslie: I understand why the hon. Gentleman suggests that, and it is perfectly reasonable for him to debate it, but there are difficulties with his proposal, because either party would be able to apply to the family court to vary the restraining order.
 Although it is true that the purpose behind the clause is, in part, to save the victims of crime from having to bring separate proceedings in different courts, the principal ground and main reason for the proposal in the clause is that if criminal courts are hearing evidence of a particular problem with harassment and difficulties, they should be able to address them. The clause ensures that the criminal court has the capability to choose a restraining order for particular offences. 
 Restraining orders are made for specific purposes to protect a person from harassment. They are also made following evidence in a criminal case that leads the court to conclude that it is necessary to make an order to protect the victim from harassment. In those circumstances, that is properly a matter for the criminal courts. Family courts, which typically deal with matters such as divorce, adoption applications, child care and so on, are not best placed to vary a restraining order, made following a criminal case, that deals with harassment. That is why I do not support the amendment. 
 In addition, the logic of the amendment might well be to allow the converse situation to apply. If family courts were able to amend orders made in criminal courts, some might suggest that the latter should logically be able to amend orders made in the former—the family courts. We believe that that would be highly undesirable; just as criminal courts might lack the experience and expertise to make appropriate amendments to orders made in the family courts, so the family courts are not often well placed to amend restraining orders agreed in a criminal case. 
 When restraining orders need to be varied to allow a child contact order to function properly, an application to do so can be made to the criminal court. I accept that that will involve a separate set of proceedings, which is the regret that the hon. Gentleman voices. However, that is an entirely different scenario from the one that we try to remedy in the Bill, in which the criminal court feels it necessary to protect the person from harassment regardless of 
 whether the criminal case has ended in a conviction or an acquittal. On those grounds, I hope that the hon. Gentleman will not press his amendment.

David Heath: I do not intend to press my amendment, but I hope that the Minister will give it a little more thought. He has accepted that the process will, of necessity, be more cumbersome than it would if the amendment were made. He knows from the debate on the previous amendments that, in making the order, the criminal court will not have evidence that may relate to family circumstances and child contact arrangements, as the family court will. Of necessity, the family court has a much wider view of such matters, not only because it will have heard a wider range of evidence, but because the interests that the family court protects are wider than those of the criminal court.
 It is not inconceivable—indeed, I will go further: it is almost probable—that there will be instances in which a restraining order will be set in such terms as to cause operational problems with child access arrangements, to the detriment of the child. Given the Government's intention on this issue, it seems extraordinary that that should not be able to be remedied in a family court, and that the family court should have to consider the matter and go back to the criminal court, with the cost and inconvenience that that would incur, to vary an order. 
 Nobody suggests that that should work the other way round; I do not propose that. However, if we are serious about family courts and the specialist expertise that we are developing in them, we must allow them to do the job in the round and effectively. What is being proposed works against that. I am disappointed by the Minister's response. I have not given up hope that he will give the matter further consideration.

Lady Hermon: Is it the hon. Gentleman's view that the real reason for the Minister's skilful deflection of the amendment is that clause 10 finds itself in part 2? This is the Domestic Violence, Crime and Victims Bill; clause 10 comes under part 2, which deals with crime. Does the hon. Gentleman agree that the real reason why the Minister has deflected the amendment is that restraining orders are intended to go way beyond family courts and domestic violence, and to be a sweeping broadening of the criminal law to include those who have no conviction and are going to be acquitted so that they can have a restraining order? That will completely undermine ASBOs.

David Heath: The hon. Lady is right on the breadth of the application. My amendment simply addresses the circumstances in which a matter would be before the family courts. That is self-limiting, because the wider extent of the application is not likely to be a matter that would interest the family courts. It is only where the family courts have a locus in the first instance that they would seek to vary a restraining order. However, the hon. Lady makes a serious point, which she may wish to pursue on stand part.
 My amendment would improve the Bill and I hope that the Minister will consider it further. However, at this point, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

David Heath: I beg to move amendment No. 44, in clause 10, page 6, line 15, leave out first 'the defendant' and insert
'a party to the case'.

Joe Benton: With this it will be convenient to discuss the following amendments:
 No. 45, in clause 10, page 6, line 15, leave out second 'defendant' and insert 'party'. 
 No. 46, in clause 11, page 7, line 8, leave out first 'the defendant' and insert 
'a party to the case'. 
No. 47, in clause 11, page 7, line 8, leave out second 'defendant' and insert 'party'.

David Heath: This is essentially a probing amendment. We are dealing with restraining orders on acquittal. At present, the judge can place a restraining order on the defendant in the proceedings only on the basis of the evidence that he has heard, or, in the case of a restraining order on acquittal, on the basis of any other evidence that may be put forward at that point in the trial. I suggest that the Minister considers replacing the ''defendant'' with ''a party'' to the proceedings.
 I do that because I can envisage circumstances—albeit unusual ones—in which a person has been acquitted because a court has heard evidence that the offending behaviour, such as harassment, which was not to the point of the indictment before the court, was perpetrated not by the defendant but by another party to the case. It is not inconceivable that a successful defence might be made that the prosecution had matters the wrong way round and that the person who had been accused of harassing behaviour that constituted an offence was innocent because the other party to the case was at fault, or both parties were equally at fault, or a third party such as another household member was responsible for behaviour that might be the subject of a restraining order. 
 At present, the courts can place an injunction only on the defendant, on the basis of the evidence that they have heard. Other persons may be subject to criminal proceedings at a later stage as a result of evidence adduced during the trial under the terms of this part of the Bill. There may be other persons in the court about whom evidence has been heard and about whom more evidence could be led as part of the procedures, against whom an injunction—a restraining order—should be placed. I have a simple question for the Minister; should that not at least be considered as a possibility? I accept that it is not a probability in most cases, but if it were found that it was not the husband but an elder sibling who had been the perpetrator of domestic violence, and if the evidence against the elder sibling as it emerged had been overwhelming, the Crown Prosecution Service might well take a view that the next step would be to bring a prosecution against that elder sibling. It would be sensible for the court at that 
 point to apply a restraining order to that elder sibling, who might be a party to the case, in order to restrain their behaviour until proceedings could be brought. 
 If our interest is in the protection of all concerned, it does not seem entirely logical to restrict the capacity to make restraining orders simply to the defendant, who has, after all, been found not guilty of criminal behaviour and who therefore starts the proceedings as innocent as any other person in court. That person is innocent of the charges brought against him; that is an important principle of which we must not lose sight.

Dominic Grieve: I am rather sympathetic to the hon. Gentleman's point, although I do not think that what he is putting forward is workable in practice. In my professional experience, I have been present in court at the acquittal of defendants, and at cases in which defendants pleaded guilty, where the judge, as a result of what he has heard, has bound over witnesses or victims to be of good behaviour. I remember that once being done at the assizes, as they were then known, by a red judge at Shrewsbury in a case involving an alleged robbery. In that case, it was clear that both parties in what was a pretty trivial matter had behaved very badly. The bind-over seemed absolutely appropriate for all concerned.
 The difficulty with the hon. Gentleman's proposal is that the witnesses are not parties to the case, and cannot be made parties to it. There is no way in which they could fairly be made parties to it, because they will have had no opportunity to be represented in the course of the proceedings. By changing ''the defendant'' to 
''a party to the case'', 
the hon. Gentleman is presumably widening the provisions to include any participant in the evidential process. That would lead to terrible procedural problems and the real risk that a person cannot have been properly represented while the proceedings were taking place. For that reason, the hon. Gentleman's amendment is unworkable, although I understand his intentions.

David Heath: I predicted that that would be the case. I said that this was a probing amendment, because I could see that there would be considerable difficulties with it. I simply wish the Government to consider the possible application of a restraining order to others involved in a case. I am quite sure that my amendment is not a practical solution to that problem.

Dominic Grieve: I am grateful; I defer to the Minister and look forward to hearing his views on the subject. If one wanted go down the road that the hon. Gentleman suggests, one would move towards civil proceedings. There is no way of avoiding civil proceedings, because one has to bring the people against whom the restraining order is to be applied into the proceedings as parties. Otherwise, they are not parties, and they cannot be proceeded against.

Vera Baird: The hon. Member for Somerton and Frome is right to accept the argument about practicality. Indeed, I would suggest that what he proposes may be unlawful. The elder sibling in his
 example may never have been involved, let alone represented, heard or had legal aid. There would have been no cross-examination on his behalf. We are talking about an erosion of the article 6 rights to a fair trial; although the hon. Gentleman means well, he has swept that all away at a stroke.

David Heath: The hon. and learned Lady must not misunderstand what I am saying; under the circumstances that I envisage, we are talking about proceedings at the conclusion of a trial where there has been an acquittal. As she pointed out earlier, that effectively opens up civil proceedings at the end of a criminal trial with the convenience of the trial judge being in charge of proceedings. Under the Government's proposals, further evidence could be heard at that point, and would inevitably be heard because it would be the right of any party against whom a restraining order had been made to be heard at that point, make legal representation and have legal aid if necessary.

Vera Baird: I appreciate and understand that entirely, but the apprehension that gives rise to the judge deciding that there ought to be proceedings taken against the elder sibling will have arisen in the course of evidence that the elder sibling may never have been in court to hear during the criminal trial. The urge for an injunction—in effect, a restraining order—against a sibling or any other witness will have to have come from what has happened in the course of the trial. It is easy for someone to blame someone else for what they are alleged to have done in course of a trial, as that person, even if present, will not be represented.
 How does the judge fairly get to the position at which he decides that considering a restraint order is permissible? The only way it could be done would be by replaying all the evidence heard against the elder sibling in the civil proceedings after the trial. Therefore, civil proceedings might as well have been started in the first place. The proposal in the amendment is not at all practical, and I am sure that there would be repeated breaches of article 6—on the right to a fair trial—against the party who find themselves pilloried in a case with which they have never had any connection. 
 The bind-over provisions would require the person who is going to be bound over to agree to be bound over. That seems a much more sensible way in which to proceed. The hon. Member for Somerton and Frome should not forget that all such provisions contain an inherent power to bind a witness over if it is thought that there is any apprehension that that person will go on to breach the law. The amendment is therefore otiose. 
 The third, and the major reason, why I oppose the amendment is that I cannot think of anything more likely to discourage somebody who truly is a victim of domestic violence from pressing on with an allegation against the perpetrator than appreciating that if the perpetrator wants to make an allegation in court that the victim has misbehaved, she herself will become 
 vulnerable to the prospect of a restraining order, backed by criminal sanctions. That would be totally discouraging, and it flies completely in the opposite direction of the Bill.

Christopher Leslie: I am indebted to my hon. and learned Friend the Member for Redcar and to the hon. Member for Beaconsfield for making the points that I was going to make. I have a four-page speaking note that I can gladly reduce to two because many of my arguments have been well aired by others.
 I had not realised that the technical definition of ''a party to the case'' would not, as the hon. Member for Beaconsfield suggested, include the witness. In fact, the parties to the case would be the prosecution and the defendant. One of the oddities of amendment No. 44 is that we could end up with restraining orders on the prosecutor, which would be an interesting scenario, but not one that Committee members would necessarily welcome. 
 If a prosecution has been brought, there will be sufficient evidence against the defendant to justify bringing the case to court. It is the defendant's alleged conduct that is under close scrutiny by the court, and it might well be that although actions amounting to harassment or violence by the defendant are admitted or proved during the case, they are not themselves sufficient to secure a conviction for the offence with which he was charged. 
 The defendant will be legally represented in court and will have ample notice of the alleged conduct that will be examined in court. However, a witness to the case, who could well be the alleged victim, will not necessarily have had legal representation during the case and will not have had the same notice that their conduct will be examined in detail. The amendment, which would allow the courts to make restraining orders in respect of witnesses, is therefore unfair and might deter victims or witnesses from supporting prosecutions. As hon. Members have noted, the courts have the power to bind over witnesses, and, if there were sufficient ground, the police and the CPS could consider bringing prosecutions against them. There are therefore fundamental differences between the position of the defendant and the witness in the case, which means that it would not be appropriate to extend the power in the way intended by the amendment. Given that the arguments have been well aired, I hope that the hon. Member for Somerton and Frome will not press his amendment.

David Heath: The debate has aired the issue. As I said earlier, there are difficulties with my proposal; I never intended it to be anything other than a probing amendment. I am not entirely clear about what would happen where the court overwhelmingly took the view that there was a need to restrain potential harassment at the end of a criminal trial, on acquittal, where the defendant was not likely to be the harassing party. In such circumstances, the matter should go to a civil court for fresh proceedings. I had hoped that there might be a way for the criminal court to take on the
 functions of a civil court under those circumstances, but I hear, understand and agree with the legal arguments from both sides. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

David Heath: I beg to move amendment No. 41, in clause 10, page 6, line 15, leave out 'an' and insert 'a temporary'.

Joe Benton: With this it will be convenient to discuss the following:
 Amendment No. 42, in clause 10, page 6, line 34, at end insert— 
'( ) On the making of a temporary order, the court shall refer the matter to the appropriate family court for urgent consideration.'. 
New clause 11—Restraining orders on conviction or acquittal of an offence arising out of domestic violence— 
 '(1) Any order granted under section 5 or 5A after conviction or acquittal of an offence arising out of domestic violence shall be a temporary order. 
 (2) On the making of a temporary order under this section, the court shall adjourn further hearing to the Family Proceedings Court or the County Court. 
 (3) The person or persons for whose benefit the temporary order has been made shall be entitled to be heard and represented by a lawyer at the adjourned hearing, and may lead, as further evidence, any evidence that would be admissible in proceedings under section 3. 
 (4) Domestic violence may include, but is not restricted to— 
 (a) actual or threatened physical, verbal, sexual, psychological or emotional abuse; 
 (b) intimidation, harassment or stalking; 
 (c) actual or threatened damage to property; 
 (d) threats of harm to or restriction of access to others, including children; 
 (e) unwarranted restriction of or interference with access to money, personal items, food, transportation and communication; or 
 (f) restriction of freedom of movement or access to potential sources of support; 
 by a person or his or her agent towards a cohabitant, relevant child or associated person as defined in section 62 of the Family Law Act 1996 (meaning of ''cohabitants'', ''Relevant Child'' and ''associated Persons'') and may be a single act or a number of acts forming a pattern of abusive behaviour. 
 (5) Abuse has occurred if the defendant causes a relevant child to witness or puts a relevant child at risk of witnessing the abuse of an associated person. 
 (6) The victim is not to be regarded for the purposes of subsection (3) as having caused or allowed the child to see or hear abuse or, as the case may be, as having put the child, or allowed the child to be put, at risk of seeing or hearing the abuse.'.

David Heath: I am indebted to the Law Society for these amendments, which have been advanced by family lawyers who are concerned about the interaction between a criminal case and any proceedings that may be taking place in a family court.
 The amendments help to make two points. First, although we do not have a unified jurisdiction, we have specialist judges in family courts who are better able to make judgments in the round. Secondly, there is a lacuna in the current proposals, which we have already explored to some extent. On acquittal, there is no bail order and therefore no restraining order on a defendant that can be attached to a bail order. The hon. and learned Member for Redcar is right to say 
 that there will, inevitably, be a delay between acquittal and making a restraining order, because there must be time to prepare evidence and for witnesses to make an application to the judge on the terms and rectitude of a restraining order. Therefore, there is a period when the victim is not adequately protected by any means. 
 One difficulty of the current proposals is that it would be difficult, prior to criminal proceedings, for a victim to secure a civil court injunction that would serve the same purpose. However, there is a problem arising from that: they would be unlikely to get legal aid for such a purpose if a criminal prosecution were forthcoming. Therefore, nothing persists to provide the protection to the victim in the period between acquittal and the restraining order being made by the criminal court. 
 Under the amendments a temporary order should be available, prior to referring back to the family court for urgent consideration. That would ensure that the family court has the capacity to take into account in such proceedings all the circumstances of the family, the victim and the defendant, and all the circumstances that enable a proper solution to be applied. It is right that the person should have access to that and, if required, to legal aid to secure those matters before the civil court. 
 One argument that has been advanced against the Government's proposal is that the route of appeal becomes much more complicated if more than one jurisdiction takes part in the procedures. I do not accept that because when the appeal has moved to the family court, that court would take responsibility for the terms of the order. That would be the point of making the order rather than the previous criminal proceedings, a matter that would be clearly understood by all concerned. There is no obvious reason why the family court—or any other civil court—should not hear new evidence. In those circumstances, it would be perfectly proper to do so. Indeed, that is one of the benefits of the system. 
 There is another problem with making the order in a criminal court. If the defendant is held to be represented at all, it will probably be by the CPS. The prosecutor is a criminal lawyer. The prosecutor has a narrow focus on the terms of the charge before the court. Yes, the interests of the lawyer are to secure justice and, within that context, to secure the prosecution, but he is not interested in the future relationship between the parties to the case. The lawyer is neither interested in the circumstances of the family nor in the holistic approach, which is of considerable importance. That is the basis on which I tabled the amendments. 
 New clause 11 contains a definition of domestic violence, and I do not propose to rehearse yet again the arguments for a viable definition, save to say that I still believe that it would improve the Bill if it contained one. The new clause gave me an opportunity to put one in, and I hope that the Minister will not lose sight of the insistence of many members of the Committee that a viable and unambiguous definition of what constitutes domestic violence would improve the Bill. 
 I hope that the Minister will consider the amendments, which have been proposed by practitioners in the field. They recognise the difficulties of what is involved and want the legislation to work more satisfactorily than it might do, as drafted.

Christopher Leslie: New clause 11 would make restraining orders made on conviction or acquittal for offences of domestic violence have only temporary effect. In making such an order, the court would be required to refer the case to a family or county court for further consideration. We have heard the arguments advanced by the hon. Member for Somerton and Frome in favour of such action.
 Amendments Nos. 41 and 42 would have a similar effect. They would make all restraining orders made on acquittal have temporary effect. Similar amendments were tabled in the other place, and the Government made it clear that we were opposed to referring restraining orders made in the criminal court to the civil courts for further consideration. When considering the amendments, it is important to bear it in mind that restraining orders under the Protection from Harassment Act 1997 are civil, preventive orders made by a criminal court at the conclusion of criminal proceedings. Under the current terms of the Act, the orders are not limited to family cases, but can be made when a person is convicted for offences under sections 2 and 4, which are offences of harassment and putting people in fear of violence. That includes cases such as stalking by a stranger. 
 The Government's aim in clause 10 is to extend the protection offered by the restraining orders to cover cases when someone has been convicted of any offence and to allow the courts to make restraining orders when there is insufficient evidence to convict, but when the court considers it necessary to do so to protect the victim. Our proposals will obviously help victims of domestic violence, but they will also help in other types of cases that would not come within the remit of the family court and when it would not be appropriate for it to consider the case. We can envisage such circumstances in assault or criminal damage cases, for example. 
 I understand that there might be concerns that clause 10 is moving into the criminal court matters that might be more properly dealt with in the family court, where judges and lawyers are trained in family rather than in civil matters. However, that is not the case. The Protection from Harassment Act 1997 has never dealt only with family law matters, and it was built on the assumption that a criminal court could and should be able to make a civil order on conclusion of criminal proceedings. Clause 10 simply continues that principle. If the case raises family law matters, there should be separate family proceedings to deal with them. To hand over part of the criminal proceedings for the family court to reconsider would not offer any further protection for victims and defendants alike. Therefore, we believe that new clause 11 is unnecessary. 
 Amendments Nos. 41 and 42, which would remit to the family court all restraining orders made on acquittal, regardless of whether it was a case involving domestic violence, would be unworkable in practice, because they would send to the civil court even those cases that had nothing to do with domestic violence and where the parties were, perhaps, unknown to each other. Obviously, it would be absurd for civil courts to have to reconsider a restraining order in a case of stalking, or harassment or putting someone in fear of violence where the parties were not known to each other.

Dominic Grieve: What steps will be taken to ensure that in a case where someone is prosecuted, convicted or acquitted of an offence that is related to domestic violence and where family proceedings may be running in parallel, the court knows what is happening? Although things may have greatly improved, experience suggests that the channels of communication between the family court and the Crown court are often likely to be poor, if not non-existent. It is clearly desirable to ensure that the Crown court does not make orders that duplicate ones that may be in existence in family proceedings.

Christopher Leslie: That point has occurred to the Government as well as to the hon. Gentleman. He asked what steps we are taking to address those issues. I understand that a working party has been established, which involves not only the president of the family court but my right hon. and learned Friend the Solicitor-General, to examine the relationship of issues between the criminal and family jurisdictions. I have no doubt that my right hon. Friend has heard the hon. Gentleman's point and will look to take it forward in that working party.
 There are other drafting arguments about amendments Nos. 41 and 42. I shall not bore the Committee with them. I have made the point as clearly as I can that we cannot simply restrict the temporary nature of the orders, and we should not have an automatic referral to the family courts, not least because of the scope of restraining orders occurring in those wider criminal proceedings. I hope that the amendment will be withdrawn.

David Heath: Uncharacteristically, the Minister does not appear to have read the amendments to which he is referring. New clause 11 clearly qualifies the temporary orders as those that are
''arising out of domestic violence''. 
Therefore, it is complete nonsense to suggest that matters that would normally come within the scope of the Protection from Harassment Act 1997 and that were not cases of domestic violence would be referred to the family court. They would not be. It is clear that the only circumstances in which an order would be temporary under this provision would be where it were a matter arising out of domestic violence, as defined in new clause 11. A large part of the arguments that the Minister was given to give to the Committee do not hold water and are based on an incorrect premise. 
 There is still potential for confusion. There is also an undermining of the whole purpose of the family courts and the edifice upon which they have been built, which is that they are centres of expertise where people understand the complex issues involved in relationships and make judgments based on that understanding. Simply to allow the criminal courts as a matter of convenience to usurp the authority of the family courts would be a retrograde step. I understand the need for and expediency of allowing criminal courts to take action under certain circumstances, but it would be better for that then to be subject to mature reflection by a tribunal that exists for that specific purpose and that ensures not only the integrity but the comprehensiveness of the process so that the right solution can be achieved for a particular relationship in a particular set of circumstances, especially where children are involved, as they so often are in cases of domestic violence. 
 I reject the Minister's arguments for dismissing the amendment because they are based on a false premise, which I hope I have exposed. I will not press the amendment to a Division today, but I will wish to return to the matter on Report. I hope that the Minister will take the trouble to read the amendment carefully, and to understand its purpose. It is a legitimate and serious purpose; indeed, I expect nothing less from those who advised me on this matter. I hope that we will be able to make further progress on this at a later stage. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Vera Baird: I have four small points on which I seek reassurance.
 First, there is the lacuna pointed out implicitly in the amendments of the hon. Member for Somerton and Frome. There is concern that there may be a gap in time when the victim will not be protected after somebody has been acquitted of a criminal offence and before the evidence on which a restraining order can be considered has been served on him or her to give them an opportunity to deal with it. If the defendant has been convicted, there can be bail pending sentencing that can include the restraint order, so he can be ordered not to go near the defendant. However, if he has been acquitted, his bail term has come to an end and, although I accept entirely the Minister's aim that the material on which the application for a restraint order post-committal will be made ought to be served in the proceedings if possible, there will be times when events have moved on during the course of the trial and issues have been raised in it so that it is not practical to give the defendant adequate notice to be able to deal with all matters straight away, and an adjournment would be inevitable. 
 The power in new section 5A is to make an order prohibiting the defendant from doing anything if it is considered necessary to do so, and, if it is possible under section 3 of the Protection from Harassment Act 1997 on the way in which evidence can come in on a 
 civil basis, to bring evidence to justify a temporary injunction. There is also a power to have a temporary injunction under that Act. My guess is that those provisions combine to allow a court before which the restraint order will soon be heard to make a temporary restraining order until the evidence is heard, which will be sufficient to protect the victim from any further assaults or misconduct in the meantime. That is obviously a key to the purpose of this legislation, so I would like to be reassured that I am right about that, or that by some other route, safety would be guaranteed at the point of acquittal. 
 From the other vantage point, it seems clear that a restraining order can be, for as long as is necessary for the protection of the victim, wide enough to direct that the defendant should do anything necessary. That means that we will have to face the possibility, perhaps frequently, that somebody in a domestic violence case who is acquitted of a criminal offence will be ordered to leave his home under these proceedings. Is that intended? I do not have great concerns about the matter; the alternative is that the complainant would go straight to the civil court for that to happen. However, we have to be ready to face the fact that, on acquittal, somebody may be ordered to leave their home. I want to be sure that that is intended and that I have not understood the matter too widely. 
 I also seek a reassurance that, on acquittal, when a criminal court is functus officio—it has done its job; the criminal proceedings are at an end—the defendant's legal aid will carry on, so that in what are now purely civil proceedings, criminal legal aid will none the less cover the person in question so that he can continue to be represented. 
 Lastly, and not altogether frivolously, although with a slight twinkle in my eye for a reason that will become clear, I mention new section 5A(6), which states: 
 ''A person made subject to an order under this section has the same right of appeal against the order as if— 
 (a) he had been convicted of the offence in question before the court which made the order, and 
 (b) the order had been made under section 5''. 
That means following on a conviction, and it seems to suggest that an appeal against a restraint order at a magistrates court would go to the Crown court. Those acquainted with the Court of Appeal criminal division will be amused to appreciate that it also means that a restraining order in the Crown court would be appealed to the Court of Appeal criminal division. That would be a civil order, heard on the civil standard, and it might involve all manner of family considerations; I wonder whether their lordships know what is coming.

Christopher Leslie: I am sure that their lordships, as ever, know what is coming. It is important that we do not rehearse ad nauseam the purposes behind clause 10. We should simply underline the fact that this is a major step forward, designed not only for domestic violence cases, but for preventing harm to the victim. Although restraining orders are preventive rather than punitive, I believe that it is important to extend their availability beyond the two offences in the 1997 Act.
 My hon. and learned Friend raised important questions. It is right that we should try our best to make sure that the presumption is for the victim's immediate safety in such situations. As I said, I am not the expert that she is on the legal procedures. A parallel consideration of the rules of court is going on, to establish what changes might be necessary to make the arrangements come into place. However, the hon. and learned Lady says herself that the provision for injunctions under section 3 of the Protection from Harassment Act 1997 means that a court can provide that protection at the outset. 
 My hon. and learned Friend's point about the right of appeal against restraining orders is important. The arrangements that she suggests are indeed those envisaged. I am sure that the courts would be able to cope and adjust flexibly to the changes in policy that we envisage. 
 My hon. and learned Friend asked whether restraining orders could prohibit any particular activity. They have a wide prohibitive scope. However, they could not be used to order a defendant to do something, although the court could use them to, say, prevent someone from entering a family home if it were necessary to protect a person from harassment. One of the beauties of the restraining order is that it has that flexibility and scope. 
 Under this clause, we have had a useful run though many of the facets of restraining orders and the ability to extend them. By and large, I sense that Committee members see the benefits, especially for the victims of crime, that will flow from allowing the courts extra scope to act when they hear specific evidence on any offence, not least in circumstances in which the defendant may be acquitted. It is right that we shift the balance in favour of the victim, but, of course, we have the relevant protections in place in law. 
 Question put and agreed to. 
 Clause 10 ordered to stand part of the Bill.

Clause 11 - Restraining orders: Northern Ireland

Question proposed, That the clause stand part of the Bill.

Lady Hermon: I plan to spend a few moments on the clause, which extends restraining orders to Northern Ireland. Part of me, but not all, is pleased that for once the Government have remembered Northern Ireland in relation to criminal law. As I said in debate on clause 10, we in Northern Ireland do not even have antisocial behaviour orders. I say that with great regret, because criminal law was not devolved even during the brief time that we had an Assembly, which was suspended in October 2002. Responsibility for criminal law in Northern Ireland has remained in Westminster since 1972. Last year, I was one of the first to complain that only a small portion of the Criminal Justice Act 2003 extended to Northern Ireland. However, we have a
 listening Home Secretary. Although he comes in for a lot of criticism, he is much admired in Northern Ireland for his extension of some provisions there.
 Turning to restraining orders, the Constitutional Affairs Minister repeatedly made reference to the fact that the Protection from Harassment Act 1997 goes wider than domestic violence. That is absolutely correct. It deals with pursuing a course of conduct that leads to harassment and with the fear or threat of violence that can arise from harassment. I therefore have difficulty with the positioning of clause 11. I urge Committee members to remember that we have moved on from domestic violence to the crime section of the Bill. Although our debates are couched in terms of domestic violence, I urge all Committee members to pay attention to the wider remit of clause 10 and, in Northern Ireland, clause 11. 
 I should like to assist the Minister on two points. First, there is the question of references to the Northern Ireland Human Rights Commission. I was astounded—to put it mildly—when during a sitting last week I mentioned the NIHRC to the Minister and he was taken aback to hear that we have one at all in Northern Ireland. It is a statutory human rights organisation, not just any old human rights organisation. It was set up by the Labour Government under the Northern Ireland Act 1998. It has a statutory remit to be consulted and to advise the Government on the adequacy and protection of human rights. Its remit extends to all legislation that applies to Northern Ireland. 
 I again ask the Minister whether he has consulted the NIHRC. I should add, lest it be thought that I am the NIHRC's chief fan, that I do not agree with half of what it says. However, given its remit, it ill behoves the Government not to have consulted it, particularly on clause 11. I say that in the context of the fact that, long overdue, the Government have just completed their consultation period on ASBOs, which were introduced in the rest of the UK in 1997. 
 I am greatly worried that, under the clause, a person might be punished without a conviction for any offence, as long as their behaviour comes within the definition of harassment. The Minister has said that a restraining order can apply whenever there is criminal damage to property. Let us suppose that a judge in Northern Ireland has the option of issuing an ASBO or a restraining order. Will the Minister explain why such a provision is being drafted now and which factors will be uppermost in the mind of the judiciary in Northern Ireland? I accept that that question is hard to answer, but will he explain the guidance and the factors that a judge in Northern Ireland will take into account when deciding whether to issue an ASBO or a restraining order? 
 ASBOs are intended to ensure that a young person or a not so young person does not get a criminal record, but now restraining orders will be issued more frequently than ASBOs, and more people will therefore have criminal records. I need assurance from the Minister that the Northern Ireland Human Rights 
 Commission has been consulted. What advice did it give about clause 11? Can he reassure me that ASBOs are still worth while in Northern Ireland?

Christopher Leslie: I appreciate the points made by the hon. Lady. It is important to take note of the fact that, although the provisions under clause 11 are identical to those under clause 10, they apply to Northern Ireland and we must consider them in that context. Although the provisions are identical, there is a different legislative context in Northern Ireland—although the point that the hon. Lady made about criminal law matters not being devolved but held at Westminster is correct, hence the fact that we are discussing them now.
 It is important at the outset that I deal with the issues raised by the hon. Lady and reflect especially on the fact that restraining orders are not a punishment, but a preventive means of protecting the victim of a particular crime or a particular individual. Such matters came out of the consultation paper ''Safety and Justice'', which suggested that that was a good way forward. We would be wrong not to offer the benefits of the change in England and Wales to Northern Ireland. 
 The Solicitor-General and the Attorney-General have been working closely with the Director of Public Prosecutions in Northern Ireland, especially the domestic violence lead, Raymond Kitson. I pay tribute to them for their work. There has been a close dialogue between those involved in such matters in Northern Ireland and those here. I am aware that the Northern Ireland Human Rights Commission exists in a statutory context, but although it was established under the Northern Ireland Act 1998, it was not consulted specifically on restraining orders. However, it was consulted on the wider proposals to extend the Bill and its domestic violence provisions to Northern Ireland. That dialogue continues. Obviously, it is for the House to scrutinise the provisions step by step and to make specific decisions. 
 I am not a legal expert in this respect, but I understand that in Northern Ireland there is a closer working relationship between the civil, family and criminal sides in the same court environment. In a sense, therefore, many provisions will be somewhat easier to operate. 
 An order was laid yesterday for debate under the affirmative procedure to introduce ASBOs in Northern Ireland. I am hoping that there will be a debate on that before the summer recess, although I cannot guarantee the parliamentary timetable. I hope that reassures the hon. Member for North Down that we are trying to progress on extending to Northern Ireland some of the extra protections that have been available in England and Wales. Clearly, however, the relevant order has yet to be debated and agreed, and I would not want to pre-empt that process. 
 In general, I hope that the hon. Lady agrees that many issues of domestic violence and of the wider protection of persons from harassment or the fear of violence apply equally in Northern Ireland and in England and Wales. It is important that we have these provisions. We are seeking to achieve a realignment, 
 regardless of the jurisdiction. That is why clause 11 is in the Bill and I hope that it will be allowed to stand part of it.

Lady Hermon: I am most grateful to the Minister for his response. I welcome the order in respect of ASBOs that was laid yesterday. It was challenged—judicial review was sought by the Northern Ireland Commissioner for Children and Young People because children had not been consulted—but the challenge did not succeed. It is welcome news to me that the legislation to introduce ASBOs was laid yesterday. Unfortunately, it will be done through an Order in Council so the provisions will not receive the proper scrutiny on the Floor of the House that it might otherwise have done.
 The Minister is right that Northern Ireland is a small jurisdiction; we have 1.7 million people and the main courts are in Belfast. We only have nine High Court judges but legislation that was passed in this place last Thursday means that their number is to be increased by 10—a significant increase. It is, however, a pity that it was done last Thursday, before the judicial appointment commission could get up and going and ensure that the judiciary, in particular the High Court, was representative in terms of gender and ethnicity. There is not one female judge or one member of an ethnic minority in the judiciary in Northern Ireland. 
 I am pleased that restraining orders are to be made available in Northern Ireland through the Bill. I will closely examine their operation and how many are issued compared with ASBOs. I hope that the Government bear in mind the difficult circumstances that we have in Northern Ireland, particularly coming into the marching season. Where one might have anticipated ASBOs being issued, we may now have restraining orders. I will watch with interest. Perhaps when the Minister visits Northern Ireland he will come with me to visit the Northern Ireland Human Rights Commission and we will take it from there. 
 Question put and agreed to. 
 Clause 11 ordered to stand part of the Bill.

Clause 12 - Application by prosecution for certain counts to be tried without a jury

Dominic Grieve: I beg to move amendment No. 89, in clause 12, page 8, line 5, at end add
'of all matters against the Defendant.'.
 We now come to a part of the Bill that is fairly controversial. I hope that I will be excused if I make a few general remarks. Doing so might enable us to shorten the debate on clause stand part, but that is dependent on the Government's response, particularly on Government amendment No. 57, which we shall discuss in a moment and which fills me with gloom and despondency. 
 The Solicitor-General will recollect that during the passage of the Criminal Justice Bill through the House any restriction on the right of trial by jury was fiercely contested, and that at the end of the day the 
 Government had to back down. They used the face-saving device of having one area that involved lengthy trials being subject to a double-lock mechanism of the resolution of both Houses of Parliament—something that is most unlikely ever to happen. I said to the Minister at the time, and I say it again, that the official Opposition accepted that there was a serious issue in relation to lengthy trials with multiple counts—indeed, not even lengthy trials but those that required multiple counts to be stated upon the indictment for the purpose of enabling the full gravity of a defendant's offence to be made clear. 
 In the past, such cases were dealt with by offences being taken into consideration at the closure of the trial on sample counts only. However, after court decisions, which were inevitable, in the late 1990s it was firmly established that unless a defendant accepted other offences being taken into consideration, they could not be considered by the judge when he formed an overview of the criminality of the defendant on conviction. We were left with an indictment loaded with multiple counts saying much the same thing, or we proceeded on sample counts only, which might not be representative of the defendant's criminality. If the defendant refused to accept the other offences being taken into consideration, he could be sentenced only on offences of which he was convicted. I have always accepted that that was unsatisfactory. 
 If somebody lays their hands on a credit card and uses it 150 times, he is obtaining property by deception each time he uses it and is thereby committing 150 separate offences, and if the jury were required to consider all 150 counts, it would be placed under a considerable burden. In the past, that would have been unnecessary because the defendant would have been charged with half a dozen counts—one at the start of the period when he obtained the credit card, several in the middle and one at the end—and the judge would have been invited to take the other counts into consideration on conviction. In the old days, even if the defendant said that he did not accept that, the judge could still impose a sentence on the basis that he had committed the offence, but he can no longer do that. 
 That reinforces my view that there is a justification for a change to be made to the law in respect of such circumstances. However, we have always been anxious that that change should not simply be a device whereby the Government open the floodgates and restrict the right to jury trial. The devil is in the detail. When I first read the clause I was not impressed, because it was drafted—perhaps it is modern drafting practice—in such a way that it gave the impression in clause 12(1) that the prosecution could 
''apply to a judge . . . for a trial on indictment to take place on the basis that the trial of some, but not all, of the counts included in the indictment may be conducted without a jury.'' 
The first message is wrong, but I accept that it is further qualified as one reads the other subsections. 
 My first amendment, No. 89, deals with a discrete point and, if we address that quickly, we can, perhaps, deal with the much wider point, which is the 
 Government's intention to get rid of an important Lords amendment. I hope to be able to speak to that this morning, because I have to attend a funeral this afternoon. 
 One provision included by the Government in subsection (6) is that the judge, when deciding whether to allow certain counts to be tried without a jury if a person is convicted with a jury on the sample counts, 
''must have regard to any steps which might reasonably be taken to facilitate a trial by jury.'' 
I assume that that means that the judge would discuss the matter with the prosecution, saying, ''Look, you have 60 counts on this indictment and you want to try 10. Wouldn't it be better to select 15 and drop the other counts, giving me sufficient basis on which to sentence? Some of the counts amount to a total criminality of £50,000, whereas the other counts only total a further £3,000. Will you please consider that?'' I assume that that is what subsection (6) is intended to achieve, but I am not sure that it does so. I tabled the amendment to make it clear that the judge has to consider what can be done to facilitate a trial by jury 
''of all matters against the Defendant.'' 
I hope that that is already implicit in subsection (6), because I assume that that is what the Government intend. The Minister might agree with me that subsection (6) is slightly nebulous. What are these steps that 
''might reasonably be taken to facilitate a trial by jury'' 
—and a trial by jury of what? Subsection (6) does not say. I assume that it must be of all matters against the defendant, in which case I urge the Minister to accept my amendment, which in no way detracts from what he is trying to achieve, but makes it clear what it is that the judge must set out to do. 
 I hoped that I would have an opportunity to speak to the Government amendment to the clause, but I fear that I will not. If I am not here to respond later, I would like to place on record that I believe that the House of Lords has correctly amended clause 12—

Joe Benton: Order. I need to point out to the hon. Gentleman that we are not discussing the Government amendment.

Dominic Grieve: I appreciate that, Mr. Benton, and I apologise. I hope that the Government will accept the Lords' amendment.

Harriet Harman: As the hon. Gentleman says, this is a small amendment. He is trying to draw out issues that he rightly says we need to discuss in relation to the Government amendment and issues that surround the context of clauses 12 to 16, which deal with multiple offending.
 Perhaps I can assist the hon. Gentleman by explaining that we will resist his amendment on two grounds. First, subsection (6) serves as belt and braces for the provision in subsection (3), which says: 
 ''The first condition is that the number of counts included in the indictment is likely to mean that a trial by jury involving all of those counts would be impracticable.''
I was trying to short-cut my point there, and I will have to refer back to that later. 
 We agree that jury trial referred to in clause 12(6) means a trial of all the counts, as it is the inability to hold such a trial that would justify using the two-stage procedure. We are therefore not persuaded that the drafting change in the amendment is necessary. One of the things that subsection (6) could apply is the severing of the indictment and holding two separate trials. Subsection (1) states that the judge must make an order for the trial 
''to take place on the basis that the trial of some, but not all, of the counts included in the indictment may be conducted without a jury.'' 
Three conditions then follow. The amendment does not help and is unnecessary. Clause 12 exists to prompt the judge to consider whether there is any other way of dealing with the counts. That addresses the point raised by the hon. Gentleman about whether the indictment should be severed.

Dominic Grieve: The Solicitor-General has not completely persuaded me because there is a difference between the trial of all the counts and the trial of all the matters against the defendant. I highlighted that in my opening remarks when I said that, without this provision, I would normally expect in a criminal trial with multiple counts for the judge to discuss with the prosecution and defence whether it was possible to reduce the counts on the indictment. The classic way of doing that is by saying, ''Some of these counts don't really add anything, as they are very minor matters. He obtained £5, and that is of no consequence, but on the other day, he obtained £15,000.'' That is why I specifically used the expression ''all matters'' not ''all counts''. It must logically follow that if the judge is confined to examining how to have a trial of all the counts, he must have severance; or he must say, ''There are not so many counts that the jury can't handle it, and the jury will be able to handle it''; or he must say, ''We will have a trial of some of the counts and the rest I will deal with on a sample basis.'' I thought that my amendment added something, but the Solicitor-General has partially reassured me on the Government's intention, so I will not press it. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Harriet Harman: I beg to move Government amendment No. 57, in
clause 12, page 8, line 14, leave out from beginning to 'and' in line 15.
 I am very sorry that the hon. Member for Beaconsfield is filled with gloom and despondency—he need not be. I assure him that we are not talking about a restriction of the right to jury trial, and it is certainly not opening the floodgates. 
 Let me set out for the hon. Gentleman the reasons why we want to amend subsection (9) by removing paragraph (b), which was put into the Bill in another place. The purpose of the two-stage procedure is to replace the old sample count procedure. We are not creating a new procedure. We are regulating a procedure that has been going on since time 
 immemorial but that the courts said needed to be sorted out and put on a proper footing. The old sample count procedure was disapproved by the Court of Appeal in the case of Kidd. This is not intended to do any more than provide a proper statutory replacement for the former procedure. If he could live with the former procedure—albeit recognising its shortcomings—he ought to be able to live with this one, because it simply improves on, and give better safeguards for, what used to be the case. 
 A replacement is needed. We cannot leave the situation as it was left by Kidd; I accept that the hon. Gentleman has acknowledged that. Where alleged criminal behaviour consists of activity that is repeated many times against a long series of victims, it is impossible for the number of counts that can reasonably be included in the indictment to represent—or come anywhere near representing—the scale of the alleged criminality. 
 That has two unfortunate results. First, even if the defendant is convicted of all the counts on the indictment, the court may be unable in sentencing him to take account of more than a fraction of his offending. For example, as the hon. Gentleman said, if a scam nets only a small profit each time, the proceeds of the counts of which someone is convicted on the indictment might add up to only a couple of thousand pounds, whereas the total profit realised by the fraud might run into six figures; the Serious Fraud Office feels very strongly about that. In those circumstances, as the indictment would not reflect the totality of the offending, the court would be unable to impose a sentence that bore any relation to the seriousness of the crime. It is common ground that that is unacceptable. There is another issue that gets to the point about the £10 and the £1,000. We have to think about the situation of the victim: in the totality of offending, £10 might be a small amount, but it might be a big thing for the individual victim. 
 The second unfortunate result is that in such a case most of the victims will be denied the satisfaction of knowing that the defendant has been tried and dealt with for the offence committed against them. That is also unacceptable, and it causes a lot of complaint. It is not good enough for the judges and prosecutors just to talk together about the global figure, and to forget that the victims want justice. The public want that, too. 
 I quite understand that the purpose of subsection (9)(b), which was added in another place, is to ensure that the courts adopt a narrow interpretation of what is covered by the two-stage procedure. Our objective is the same. That is why we have the three conditions set out in subsections (3), (4) and (5). 
 I have explained the sort of circumstances in which we expect the two-stage procedure to operate. There is no intention of its being used to deny a jury trial in respect of cases that would now receive one. All we want is to allow cases to go before a court that at present cannot do so, but which were able to pre-Kidd. 
 Nor is there any intention that defendants who have been tried by jury on one count should be tried for other, tenuously related offences by a judge sitting alone. The hon. Gentleman expressed that concern—
 he was obviously thinking about that sort of thin end of the wedge. Let me put his mind at rest. Rule 9 of the indictment rules—I have no doubt that he is familiar with them—will still apply. It provides that in order to be included on one indictment, charges must 
''be founded on the same facts, or form or are a part of a series of offences of the same or similar character.'' 
We are saying that if we have indictment rule 9 and the three conditions that are set out, we do not need paragraph (b).

David Heath: I rise to make the rather obvious point that subsection (9) sets out not conditions but a definition. If the Solicitor-General wants a definition, it should be a proper definition. If she does not, subsection (9) could be left out altogether. However, removing paragraph (b) creates an incomplete definition, which is surely unsatisfactory.

Harriet Harman: The distinction between conditions and definitions can be artificial.
 I want to urge another point on the hon. Member for Beaconsfield. Committee members could identify all sorts of preconditions—we could think ourselves up hill and down dale—but at some stage we have to decide where the balance lies between legislative prescription and judicial discretion. Usually, I err on the side of legislative prescription, but given that the judges will be familiar with the circumstances and with rule 9, and that they will be guided by the conditions defining what sort of cases will get through and be regarded as sample counts, I do not think that we need the belt and braces of (9)(b). 
 Nor is that all: there are other safeguards. Before a judge may order the use of the two-stage procedure, he must decide that jury trial of the whole indictment would be impracticable. We will not even get there unless the decision is made that the jury trial on all the counts of the indictment would be impracticable. That is condition No. 1.

Vera Baird: That is reassuring, but I am not sure that it is reassuring enough. To say that the judge has to be satisfied that it is impractical to try all the counts is a very high test. In a case of 200 counts, nobody would have an interest in trying all of them. If one wanted to establish the gravamen of a case with, say, 200 counts of fraud, and some counts were bigger than others, the person in question would not get six months for one count and 199 times six months for the rest.
 There comes a finite time at which it is not in anybody's interest to go on to the bitter end and keep trying extra offences, which will not add a penny's worth of sentence. It is a very imperfect test that requires the judge to decide that one cannot try all of an indictment, when in reality nobody would think of doing that. A narrower test needs to be considered—this one is too wide.

Harriet Harman: Subsection (3) sets out only the first condition; one would move on to the second and third conditions and then have to be compliant with article 6 of the European convention on human
 rights. We need to remember that we are improving the safeguards that were absent before Kidd. We do not want to go over the top and find that we cannot have what we all agree we need to have: similar sample counts tried on the same indictment separately.

Dominic Grieve: I appreciate the distinction, and the point between us may be narrow. Clearly, the safeguard of judicial discretion might prevent the mischief that I see could arise from the way in which the clause is drafted. However, the trouble is that rule 9, which the Solicitor-General prayed in aid, is not an adequate safeguard, because under the Bill it would allow a jury trial to take place on obtaining by deception with one card, and would subsequently allow a completely separate card to be the subject of trial without jury because it had been linked in one indictment. To my mind that is completely unacceptable. Subsection (9)(b) was carefully inserted in the other place to prevent that from happening.

Harriet Harman: The hon. Gentleman ought to find reassurance on that point in subsection (4), which reads as follows:
 ''The second condition is that, if an order under subsection (2) were made, each count or group of counts which would accordingly be tried with a jury can be regarded as a sample of counts which could accordingly be tried without a jury.'' 
We come back to whether something is genuinely a sample. If the hon. Gentleman is not reassured by subsection (4), I point out that the judge will have to go through subsection (9)(c), which says: 
''the judge considers that the sample count is a sample of the other counts.''

Dominic Grieve: I think I know what a sample means—we lawyers use the phrase ''sample count'' all the time, but that phrase is not defined. A sample count is what a judge considers a sample count to be, and we have to be careful under the clause to ensure that the absence of a definition cannot be abused. The Solicitor-General has not said why subsection (9)(b) prevents or impedes the interests of justice, which she is trying to further, as am I. If she gave me a good reason against the provision, I would be open to persuasion; but at the moment I am not persuaded, and I think that it is a good provision.

Harriet Harman: Moving swiftly on to deal with the very point that the hon. Gentleman raises, I agree that we do not have a definition. We have the name, ''sample count'', and we have conditions, which provide enough safeguards and are acceptable.
 The reference to the familiar expression ''sample count'' is deliberate—we intended to refer back to the pre-Kidd procedures. Judges know perfectly well what a sample count is. We are confident that the issue can 
 safely be left to the judiciary's discretion. The Law Commission is content with the approach that we have taken, although I concede that it was not its original proposal. 
 Subsection (9)(b) is unhelpful for two reasons. First, cross-admissible evidence is evidence of one offence that tends to show that the defendant is guilty of another. Evidence has to be probative of an issue in the case in order to be cross-admissible. The sort of fraud cases that the hon. Gentleman said were particularly suitable for the two-stage procedure simply consist of repeated similar allegations that are not likely to be relevant to the central issue of dishonesty. The fact that, for example, the defendant has made the same allegedly false representations to scores of victims does not tend to show that he has been dishonest. That would therefore lack the probative element that is so important for admissibility, and such evidence would fall by the wayside. 
 I now come to the other and secondary reason. The whole addition to the clause is unnecessary, but it is also problematic. The main problem with it is the one that I mentioned—namely, the fact that the evidence might be missing the probative element. However, I shall throw in the other reason, just in case I have not yet persuaded the hon. Gentleman. The addition to clause 12 is also unhelpful for reasons of timing. The judge would be required, at the preparatory hearing—that is, before the evidence had been led—to make a preliminary decision on the issue of cross-admissibility between the link counts and the sample count. That would be more difficult at that stage. The judge could only take a preliminary view that might change during the hearing of the trial evidence. However, once he had done so, it would be too late to use the two-stage procedure, because he would have fallen foul of the admissibility test. The Government therefore concluded that the addition to subsection (9) should be removed, and I ask the Committee to support the Government amendment.

Dominic Grieve: In the short time available, I can only tell the Solicitor-General that, unfortunately, I remain unconvinced by her arguments. I do not see the mischief in (9)(b) that she describes. It appears to me that, in the sort of case that I described earlier—that of multiple obtaining on a single card—cross-admissibility would immediately be present. That is precisely the sort of case that ought to be approached from such an angle. We do not want someone convicted of an offence to be tried without a jury for large numbers of other offences that are not really linked to it.
 It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order. 
Adjourned till this day at half-past Two o'clock.